[Federal Register Volume 76, Number 102 (Thursday, May 26, 2011)]
[Proposed Rules]
[Pages 30598-30600]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-13015]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 17
RIN 2900-AN86
Payment or Reimbursement for Emergency Services for Nonservice-
Connected Conditions in Non-VA Facilities
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend the Department of Veterans
Affairs (VA) ``Payment or Reimbursement for Emergency Services for
Nonservice-Connected Conditions in Non-VA Facilities'' regulations to
conform with changes made by certain sections of the Expansion of
Veteran Eligibility for Reimbursement Act. Some of the revisions in
this proposed rule are purely technical, matching the language of our
regulations to the language of the revised statute, while others set
out VA's policies regarding the implementation of statutory
requirements. The proposed rule would expand the qualifications for
payment or reimbursement to veterans who receive emergency services in
non-VA facilities, and would establish accompanying standards for the
method and amount of payment or reimbursement.
DATES: Comments on the proposed rule must be received by VA on or
before July 25, 2011.
ADDRESSES: Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to the Director,
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to
(202) 273-9026. Comments should indicate that they are submitted in
response to ``RIN 2900-AN86--Payment or Reimbursement of Emergency
Services for Nonservice-Connected Conditions in Non-VA Facilities.''
Copies of comments received will be available for public inspection in
the Office of Regulation Policy and Management, Room 1063B, between the
hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).
Please call (202) 461-4902 for an appointment. This is not a toll-free
number. In addition, during the comment period, comments may be viewed
online at http://www.Regulations.gov through the Federal Docket
Management Systems (FDMS).
FOR FURTHER INFORMATION CONTACT: Holley Niethammer, Fee Policy Chief,
National Fee Program Office, Veterans Health Administration, Department
of Veterans Affairs, 3773 Cherry Creek Dr. N., East Tower, Ste 495,
Denver, CO 80209, (303) 370-5062. (This is not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
On February 1, 2010, Congress enacted the Expansion of Veteran
Eligibility for Reimbursement Act (2010 Act), amending 38 U.S.C. 1725.
Current VA regulations implement section 1725 in 38 CFR 17.1000 through
17.1008 under the undesignated heading ``Payment or Reimbursement for
Emergency Services for Nonservice-Connected Conditions in Non-VA
Facilities.'' This proposed rule would revise Sec. Sec. 17.1001,
17.1002, 17.1004, and 17.1005. These revisions would eliminate certain
exclusions from emergency care payment or reimbursement, and define the
payment limitations for those qualifying for payment or reimbursement
under the law as amended by the 2010 Act.
The 2010 Act amended 38 U.S.C. 1725 by removing a provision that
included automobile insurance carriers in the definition of ``health-
plan contract.'' Under 38 U.S.C. 1725, veterans who are covered by a
health-plan contract are ineligible for VA payment or reimbursement.
Thus, we propose to remove current 38 CFR 17.1001(a)(5), which includes
automobile insurance in the definition of ``health-plan contract.''
These proposed amendments would implement VA's authority to pay or
reimburse claimants for providing emergency services to a veteran if
the veteran received, or is legally eligible to receive, partial
payment towards emergency services from an automobile insurer.
The 2010 Act also amended 38 U.S.C. 1725 by removing a provision
that precluded certain claimants from payment or reimbursement by VA
for emergency care at non-VA facilities. Parties who qualified as
claimants under former section 1725 (as implemented by VA in current 38
CFR 17.1004(a)) included veterans, the provider of the emergency
treatment, or the person or organization that paid for such treatment
on behalf of the veteran. Under the 2010 Act, claimants who are
entitled to partial payment from a third party for providing non-VA
emergency services to a veteran are no longer barred from also
receiving VA payment or reimbursement for such care. Prior to the 2010
Act, section 1725 required that VA deny any claim in which a veteran
has ``other contractual or legal recourse against a third party that
would, in whole or in part, extinguish such liability to the
provider.'' The 2010 Act removed ``or in part'' from this exclusion. In
order to remove this partial payment exclusion from VA regulations, we
propose to remove the clause, ``or in part'', from Sec. 17.1002(h), to
parallel the language in 38 U.S.C. 1725.
In addition, the 2010 Act authorized, but did not require, VA to
provide repayment under section 1725 ``for emergency treatment
furnished to a veteran before the date of the enactment of th[e 2010]
Act, if the Secretary determines that, under the circumstances
applicable with respect to the veteran, it is appropriate to do so.''
We interpret this provision to allow VA, through regulation, to provide
retroactive reimbursement, and we propose to implement this authority
in Sec. 17.1004(f).
Under current Sec. 17.1004(d), claims for reimbursement must be
filed within 90 days after the latest of four dates: (1) July 19, 2001
(the effective date of Sec. 17.1004(d) when VA first promulgated the
regulation); (2) the date that the veteran was discharged from the
facility that provided the emergency treatment; (3) the date of the
veteran's death (under specified circumstances); or (4) the date that
the veteran finally exhausted, without success, action to obtain
reimbursement from a third party. A retroactive claim under proposed
Sec. 17.1004(f) would be an exception to this rule. Moreover, the
first requirement in current Sec. 17.1004(d)(1)--that claims must be
filed within the 90-day period after July 19, 2001--is an outdated
provision because all claims now received by VHA for reimbursement
must, as a practical matter, be filed many years after July 19, 2001.
Therefore, we propose to remove Sec. 17.1004(d)(1).
Because proposed Sec. 17.1004(f) would authorize reimbursement for
a claim that does not meet the generally applicable criteria in Sec.
17.1004(d), we would make the provision apply ``[n]otwithstanding
paragraph (d)''. We would also require that the emergency treatment was
received on or after July 19, 2001. We use this date from current Sec.
17.1004(d)(1) because there is no indication in the language or history
of the 2010 Act that Congress intended a
[[Page 30599]]
greater benefit for claimants applying under the retroactive
authorization in the 2010 Act than what VA prescribed for claimants
under current Sec. 17.1004(d). In addition, the retroactivity
authorized by paragraph (f) would apply only to treatment received more
than 90 days before the effective date of the final rule in this
rulemaking. This limitation is necessary because treatment received
after that date would be covered by Sec. 17.1004(d), i.e., a claim for
such care is not a retroactive claim.
We also propose to limit the applicability of this retroactive
authority to claims filed within 1 year after the effective date of the
final rule. Because retroactive claims may be for care provided nearly
10 years ago, we believe that a 1-year time limit allows claimants
adequate time to learn about the new rule and complete their claims,
while providing VA a reasonable timeframe within which it must be
prepared to handle these more complex retroactive claims.
Section 1725, as amended by the 2010 Act, sets forth specific
payment limitations for those claimants who now qualify for payment or
reimbursement based on the removal of the partial payment restriction
discussed above. We would establish these limitations in paragraphs (c)
and (d) of Sec. 17.1005.
First, in proposed Sec. 17.1005(c)(1), VA would be a secondary
payer in cases where a third party is financially responsible for part
of the veteran's emergency treatment expenses. This reflects 38 U.S.C.
1725(c)(4)(B), which directs VA to be the secondary payer in such
cases. Under proposed Sec. 17.1005(c)(2), in cases where a veteran
receives, or is legally entitled to receive, only partial reimbursement
from a third party, VA would ``pay the difference between the amount VA
would have paid under this section for the cost of the emergency
treatment and the amount paid (or payable) by the third party.'' This
payment limitation would be based on 38 U.S.C. 1725(c)(4)(A), which
specifically requires VA to pay this amount.
VA would pay the provider the difference between the amount paid on
behalf of the veteran by the third party and the amount VA would have
paid in the absence of legal liability for the payment of the veteran's
health care cost by a third party. The total of these combined payments
would also be considered payment in full and extinguish any liability
that the veteran may have to the provider. This payment limitation is
required by 38 U.S.C. 1725(c)(4)(C), which directs VA to pay in full
and extinguish the veteran's liability. The veteran would no longer be
liable because the amount of the third party's payment or legal
liability, plus VA's payment, would equal the total payment VA would
have made in the absence of third party liability for the veteran's
emergency care costs. Therefore, in proposed Sec. 17.1005(c)(3), VA
would state that ``[t]he provider will consider the combined payment
under paragraph (c)(2) of this section as payment in full and
extinguish the veteran's liability to the provider.''
Under proposed Sec. 17.1005(d), VA would not reimburse claimants
for any ``deductible, copayment or similar payment'' that veterans owe
to third parties. This is based on 38 U.S.C. 1725(c)(4)(D).
Finally, we note that it is not necessary to propose changes based
on the statutory language precluding reimbursement for amounts ``for
which the veteran is responsible under a health-plan contract,''
because current 38 CFR 17.1002(g) already prevents any reimbursement or
payment where the veteran is under a health-plan contract.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in expenditure by
State, local, or Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any given year. This proposed rule would have no such
effect on State, local, or Tribal governments, or on the private
sector.
Paperwork Reduction Act
The Office of Management and Budget (OMB) assigns a control number
for each collection of information it approves. Except for emergency
approvals under 44 U.S.C. 3507(j), VA may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
Current Sec. 17.1004 contains a collection of information under
the Paperwork Reduction Act (44 U.S.C. 3501-3521). OMB previously
approved the collection of information and assigned Control Number
2900-0620. Because this proposed rule does not alter the information
collection approved by OMB under the existing control number, we do not
propose to seek new approval.
We propose to insert a citation to the OMB control number
immediately after the authority citation for Sec. 17.1004 to clarify
that that section contains an approved collection of information.
Executive Order 12866
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a regulatory action as a ``significant regulatory
action,'' requiring review by the Office of Management and Budget (OMB)
unless OMB waives such review, if it is a regulatory action that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or Tribal
governments or communities; (2) create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
The economic, interagency, budgetary, legal, and policy
implications of this proposed rule have been examined and it has been
determined not to be a significant regulatory action under Executive
Order 12866.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. This proposed rule would not cause a significant
economic impact on health care providers, suppliers, or entities since
only a small portion of the business of such entities concerns VA
beneficiaries. Further, under this proposed rule, affected small
entities would be reimbursed for the expenses they incur for the
emergency treatment of certain veterans. Therefore, pursuant to 5
U.S.C. 605(b), this proposed rule is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
[[Page 30600]]
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance program number and title
for this proposed rule are as follows: 64.005, Grants to States for
Construction of State Home Facilities; 64.007, Blind Rehabilitation
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical
Care Benefits; 64.010, Veterans Nursing Home Care; 64.014, Veterans
State Domiciliary Care; 64.015, Veterans State Nursing Home Care;
64.018, Sharing Specialized Medical Resources; 64.019, Veterans
Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based
Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem
Program.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on May 19, 2011, for publication.
List of Subjects in 38 CFR Part 17
Administrative practice and procedure, Alcohol abuse, Alcoholism,
Claims, Day care, Dental health, Drug abuse, Foreign relations,
Government contracts, Grant programs--health, Government programs--
veterans, Health care, Health facilities, Health professions, Health
records, Homeless, Medical and dental schools, Medical devices, Medical
research, Mental health programs, Nursing home care, Veterans.
Dated: May 20, 2011.
William F. Russo,
Deputy Director, Office of Regulations Policy & Management, Department
of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to revise 38 CFR part 17 as follows:
PART 17--MEDICAL
1. The authority citation for part 17 continues to read as follows:
Authority: 38 U.S.C. 501, and as noted in specific sections.
Sec. 17.1001 [Amended]
2. Amend Sec. 17.1001 by removing paragraph (a)(5).
Sec. 17.1002 [Amended]
3. Amend Sec. 17.1002 by removing the words ``or in part'' in
paragraph (h).
Sec. 17.1004 [Amended]
4. Amend Sec. 17.1004 as follows:
a. Remove paragraph (d)(1).
b. Redesignate paragraphs (d)(2), (d)(3) and (d)(4) as new
paragraphs (d)(1), (d)(2) and (d)(3), respectively.
c. Add paragraph (f) immediately following paragraph (e).
d. Add an information collection approval parenthetical at the end
of the section.
The additions read as follows:
Sec. 17.1004. Filing claims.
* * * * *
(f) Notwithstanding paragraph (d) of this section, VA will provide
retroactive payment or reimbursement for emergency treatment received
by the veteran on or after July 19, 2001, but more than 90 days before
[the effective date of the final rule], if the claimant files a claim
for reimbursement no later than 1 year after [the effective date of the
final rule].
* * * * *
(The Office of Management and Budget has approved the information
collection requirements in this section under control number 2900-
0620.)
5. Amend Sec. 17.1005 by adding paragraphs (c) and (d), to read as
follows:
Sec. 17.1005. Payment limitations.
* * * * *
(c) If an eligible veteran under Sec. 17.1002 has contractual or
legal recourse against a third party that would only partially
extinguish the veteran's liability to the provider of emergency
treatment then:
(1) VA will be the secondary payer;
(2) Subject to the limitations of this section, VA will pay the
difference between the amount VA would have paid under this section for
the cost of the emergency treatment and the amount paid (or payable) by
the third party; and
(3) The provider will consider the combined payment under paragraph
(c)(2) of this section as payment in full and extinguish the veteran's
liability to the provider.
(d) VA will not reimburse a claimant under this section for any
deductible, copayment or similar payment that the veteran owes the
third party.
* * * * *
[FR Doc. 2011-13015 Filed 5-25-11; 8:45 am]
BILLING CODE 8320-01-P